In Re: C.A.J. Appeal of: R.J. & T.J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.A.J., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.J. and T.J. : No. 1843 MDA 2015
Appeal from the Decrees entered September 24, 2015
in the Court of Common Pleas of Berks County,
Orphans' Court Division, No(s): 84255
BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 06, 2016
R.J. (“Father”)1 and T.J. (“Mother”) (collectively, “Parents”) appeal
from the Decrees granting the Petitions filed by the Berks County Children
and Youth Services (“CYS” or the “Agency”) to involuntarily terminate their
parental rights to their minor child, C.A.J., a male born in June 2014,
(“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b).2 We affirm.
Previously, on December 9, 2013, the trial court terminated the
parental rights of Parents to their older son, T.J., born in February 2013,
under section 2511(a)(2) and (b). That same date, the trial court also
1
Arizona criminal records indicate that in 2000, Father pled guilty to five
counts of attempted sexual assault of a minor (under the age of 14). Father
was sentenced to ten years in prison, and was released from prison in March
2009. Father is a lifetime sex offender registrant under Megan’s Law.
2
On September 24, 2015, the trial court also involuntarily terminated the
parental rights of any unknown father of Child. No individual claiming to be
the putative father has filed an appeal.
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terminated the parental rights of Mother to her son, M.Y.,3 born in April
2008, under section 2511(a)(1) and (b). This Court affirmed the
termination of Parents’ parental rights as to T.J., agreeing with the trial
court’s finding that despite CYS’s offer to pay for non-offender treatment for
Mother and sex offender treatment for Father, neither parent took
advantage of the opportunity to obtain those services and move toward
reunification with T.J. See In re T.J., 105 A.3d 801 (Pa. Super. 2014)
(unpublished memorandum at 10). This Court also affirmed the termination
of Mother’s parental rights as to M.Y. based on her failure to comply with
court-ordered treatment, and her inability to provide a safe environment to
fulfill the needs of M.Y. See id. (unpublished memorandum at 12-13).
Mother gave birth to Child in June 2014. On June 10, 2015, CYS filed
separate Petitions seeking to involuntarily terminate the parental rights of
Parents to Child, pursuant to section 2511(a)(1), (2), (5), (8), and (b). Also
on June 10, 2015, CYS filed a Petition seeking to involuntarily terminate the
parental rights of Mother and any unknown father of Child, pursuant to
section 2511(a)(1), (2), and (b).4
On September 18, 2015, the trial court held a hearing on the
termination Petitions. CYS presented the testimony of Richard Frederick
3
Father is the stepfather of M.Y.
4
Parents previously filed an appeal from an Order in this matter, at Docket
No. 1466 MDA 2015, relating to the scheduling of the hearing on the
Petitions. They discontinued the appeal on October 21, 2015.
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Small, Ph.D. (“Dr. Small”), as an expert in psychological evaluations and
psychology. N.T., 9/18/15, at 6. Dr. Small opined that Mother would be
unlikely to protect or nuture a child in her care. Id. at 9. Dr. Small further
testified that Mother’s visits with Child were inconsistent, and that she
lacked motivation or commitment to bond with Child. Id. at 21. Dr. Small
opined that Mother is overwhelmed, and easily dominated, so that her
protective instinct toward her children is overwhelmed by Father. Id. Dr.
Small testified that Mother did not show any concern or regret that her two
older children, T.J., and M.Y., had been adopted, and that she did show any
recognition of mistakes on her part. Id. at 22-23.
Dr. Small also opined that Father had a long history of committing
sexual abuse, for which Father had served time in prison, and that Father
did not express any emotion or empathy toward his stepsiblings that he had
abused, which is the hallmark of an antisocial personality. Id. at 12. Dr.
Small stated that it would be highly unlikely that Father would improve with
additional treatment or services. Id. at 13. While Dr. Small could not opine
with any degree of certainty that Father is a sexual danger to a young child,
Dr. Small was concerned about Father’s unwillingness to put the needs of
others above his own, particularly those of a young child. Id. at 15. Dr.
Small indicated that Parents have a pathological relationship that is
complementary, and that Father easily manipulates Mother. Id. at 21.
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CYS then presented the testimony of Sarah Albright (“Albright”), a
licensed professional counselor, who is qualified in sexual offender
evaluation and treatment, and domestic violence evaluation and treatment.
Id. at 23-24. Albright testified that Father was unsuccessfully discharged
from psychosexual evaluation and treatment for noncompliance, and that he
had been deceitful about his history. Id. at 25-29. Albright testified that
Father’s lack of willingness to attend treatment and accept responsibility for
his actions demonstrated his lack of motivation to change. Id. at 29, 34.
Albright opined that Father’s lack of empathy toward stepsiblings that he
had abused increased the risk that he would be a re-offender, because he
does not care if he harms someone. Id. at 31. Based on Father’s failure to
complete an evaluation and treatment related to his history, Albright opined
that Father should have no contact with Child pending Father’s completion of
a full evaluation. Id. at 29-30. Further, Albright believes that Father
appears to be a risk to prepubescent individuals, but she would need to
conduct a therapeutic polygraph examination to render an opinion. Id. at
33, 34-35.
Next, CYS presented the testimony of Julie Karaisz (“Karaisz”), who is
a licensed social worker who works with children, adolescents, and families
in Berks County, and an expert in the area of diagnosing domestic violence
and “non-offending” treatment. Id. at 36-37. Karaisz testified that Mother
had attended eight one-hour non-offending parent individual sessions,
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between April 5, 2015, and July 8, 2015. Id. at 37-38. During these
sessions, Mother defended Father, and refused to acknowledge that he is a
sex offender. Id. at 38, 48-49. Mother has refused to separate herself from
him or acknowledge that he could be a threat to her or her children. Id. at
38, 50. After July 8, 2015, Mother reported that she did not have
transportation or resources to attend treatment, and she was unsuccessfully
discharged. Id. Karaisz opined that, based on the eight sessions, Mother is
very resistant to understanding the risk that Father poses to her children
because Mother is very vulnerable and defensive about Father’s criminal
history. Id. at 38-39; see also id. at 50-51 (wherein Karaisz testified that
Mother lacks a willingness to even hear that she and her children are
vulnerable to Father, because Mother believes what Father tells her).
Karaisz stated that Mother has difficulty recognizing safe boundaries, and a
lack of insight on how to protect herself and any child in her care. Id. at 39.
CYS then presented the testimony of Carla Sanders (“Sanders”), who
is an adoption supervisor at CYS, and is assigned to Child’s case. Id. at 53.
Sanders testified that she became involved with the family on January 30,
2013, when Father moved into Mother’s home, and there were concerns
about M.J. Id. at 55. Mother then gave birth to T.J. Id. After the parental
rights as to M.J. and T.J. had been terminated, CYS discovered that Mother
had given birth to Child in June 2014, and CYS again became involved with
the family. Id. at 55-56. As CYS was concerned that Parents had not
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remedied any of the prior issues, it sought and received emergency custody
of Child, and placed Child in foster care with T.J. and M.Y. Id. at 56.
Sanders explained that Parents had resided with Mother’s family
members in Fleetwood, Berks County. Id. at 57-58. The entire household
later moved to Schuylkill County, where they currently reside, because the
rent was less expensive. Id. at 58. Sanders testified that, with regard to
reporting stable housing and maintaining appropriate income, Parents have
notified the Agency of any changes in their income and residence. Id. at 68.
Parents also have reported to the Agency that, at around the time of Child’s
birth, Father was working at a donut shop, but quit when they moved to
Schuylkill County. Id. at 58, 69. Mother was working at a produce store for
two months, but also quit. Id. at 64, 69. Parents are presently
unemployed. Id. at 58, 69.
Parents were informed that it would be difficult to maintain contact
and cooperate with CYS services if they moved away from Berks County.
Id. at 58-59. As Parents indicated that transportation was a problem, CYS
provided transportation once a month for visits, the non-offending parent
evaluation, and domestic violence treatment. Id. at 59; see also id. at 56-
57 (wherein Sanders stated that prior to July 1, 2015, CYS provided
transportation for one visit, and Mother provided transportation for the
second visit each month). The majority of the cooperation by Parents
occurred when CYS provided transportation. Id. at 59; see also id. at 57
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(stating that after July 1, 2015, when CYS terminated the transportation,
Mother has attended four visits with Child).
Mother attended a total of twenty-five visits with Child since the start
of the case. Id. at 56; see also id. at 65 (wherein Sanders states that
Mother missed a number of visits with Child). Mother needed prompting on
basic care for Child, who was calm, and there were no major concerns. Id.
at 56, 70. Father’s only contact with Child was in the hospital, before Child’s
placement in foster care, as his visits were suspended. Id. at 56-57; see
also id. at 67 (wherein Sanders stated that the trial court ordered that
Father was to have no visitation with Child because he has not completed
sexual offender treatment to demonstrate that he poses no risk to Child).
Sanders testified that Mother cooperated with parenting education,
and attended the program at Open Door between August 7, 2014, and
October 16, 2014. Id. at 60. At sessions, Mother was reportedly engaged,
but was timid in her responses. Id. Mother also eventually cooperated with
a mental health evaluation conducted by Dr. Small. Id. at 60-61. Mother
had engaged in individual therapy, in Schuylkill County, regarding domestic
violence, pursuant to Dr. Small’s recommendation. Id. at 61, 67. She
participated in an educational program regarding domestic violence, but did
not agree to participate in the Commonwealth Clinical Group for domestic
violence training, nor did she agree to participate in an evaluation of what
she had learned from the domestic violence training at Open Door. Id.; see
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also id. at 70-71 (wherein Sanders testified that the Agency had offered to
cover the expense of an evaluation to determine whether Parents had
learned anything, and to determine the risk they posed for Child, but did not
receive a response). Mother attended individual counseling, and Parents
attended some marriage counseling sessions, but they did not attend on a
regular basis. Id. at 63. Parents participated in casework services and
recommendations with regard to Child with the caseworker, Jeni Dudash
(“Dudash”), on several occasions. Id. at 64. Mother cooperated with non-
offending parenting evaluations. Id. at 63-64.
Father attended parenting education at Open Door with Mother. Id. at
65-66. Father had a mental health evaluation by Dr. Small, but refused to
engage in recommended therapy. Id. at 66. Father participated in the
same domestic violence program as Mother. Id. While Father completed
the educational session regarding domestic violence, he did not follow
through with an evaluation of what he had learned. Id. at 66, 70-71.
Father has not completed a sexual offender treatment program during his
involvement with the Agency. Id. at 67, 69-70. Father indicated that he
has not participated in a sex offender treatment program because he lacks
the funds to pay for it. Id. at 67. Father has attended a casework services
session with Dudash and Christine Yuhasz. Id. Sanders explained that,
after July 1, 2015, the Agency had no contact with Parents. Id. at 65.
There was no bonding evaluation performed concerning Parents. Id. at 67.
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Sanders testified that Child is doing well in his foster home, and he
appears to be very bonded with the foster family, to whom he looks for all of
his needs. Id. at 56. Child smiles at his foster parents, and appears to be
bonded with the other children placed in the home. Id. Sanders testified
that CYS has no concern of any detriment to Child from the termination of
Parents’ parental rights. Id. at 57-58. Sanders testified that Child’s foster
family is the only family that he knows, so it would be harmful for him to be
removed from that situation and placed with people he does not know. Id.
Sanders stated that there are no concerns noted at the end of visits
regarding Child’s ability to separate from Mother. Id. Sanders testified that
Parents have not made any progress toward remediating the issues that
necessitated placement of Child or recognizing the issues. Id. at 59.
On September 24, 2015, the trial court entered its Decrees
involuntarily terminating the parental rights of Mother, Father, and the
unknown father, finding that CYS established the facts alleged in the
Petitions by clear and convincing evidence.
On October 23, 2015, Parents timely filed a Notice of Appeal along
with a Concise Statement of Errors Complained of on Appeal pursuant to
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Pa.R.A.P. 1925(a)(2)(i) and (b).5
On appeal, Parents raise the following questions for this Court’s
review:
1. Did the Honorable Trial Court err in ruling that terminating
parental rights was proper in this case?
2. Has a Due Process violation occurred since Father was
required to complete certain sexual offender services as a
prerequisite to reunification or even visitation with [C]hild,
yet the Agency or [c]ourt never permitted funding for such
services?
Brief for Parents at 2-3.
We review an appeal from the termination of parental rights in
accordance with the following standards:
[O]ur scope of review is comprehensive: we consider all the
evidence presented as well as the trial court’s factual findings
and legal conclusions. However, our standard of review is
narrow: we will reverse the trial court’s order only if we conclude
that the trial court abused its discretion, made an error of law, or
lacked competent evidence to support its findings. The trial
judge’s decision is entitled to the same deference as a jury
verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
5
Despite the trial court’s entry of separate Decrees terminating Parents’
parental rights, Parents filed a single Notice of Appeal from the Decrees.
Although filing one appeal from separate orders is generally discouraged,
Parents’ arguments regarding each Decree are identical and arise from the
same set of facts. See Baker v. Baker, 624 A.2d 655, 656 (Pa. Super.
1993) (considering an appeal from separate orders where appellant’s
arguments were identical and stemmed from the same factual precedent).
Additionally, the trial court issued one Opinion to address both Decrees.
See Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super. 2014)
(stating that an appeal from two separate orders was not fatal where the
trial court addressed the issues pertaining to both orders). Therefore, under
these circumstances, we will address Parents’ appeal.
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Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden rests upon the
petitioner “to prove by clear and convincing evidence that its asserted
grounds for seeking the termination of parental rights are valid.” In re
R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “[C]lear and convincing
evidence is defined as testimony that is so clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.” Id. (citation
and quotation marks omitted). Further, the “trial court is free to believe all,
part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa. Super. 2004). If the competent evidence supports
the trial court’s findings, “we will affirm even if the record could also support
the opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.
Super. 2003).
Satisfaction of any one subsection of Section 2511(a), along with
consideration of Section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). In this case, we will review the trial court’s decision to terminate
Parents’ parental rights based upon Section 2511(a)(2) and (b), which state
the following:
§ 2511. Grounds for involuntary termination
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(a) General rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
***
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
In order to terminate parental rights pursuant to 23
Pa.C.S.A § 2511(a)(2), the following three elements must be
met: (1) repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal has caused
the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being; and
(3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
Section 2511(a)(2) “does not emphasize a parent’s refusal or failure to
perform parental duties, but instead emphasizes the child’s present and
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future need for essential parental care, control or subsistence necessary for
his physical or mental well-being.” In re A.S., 11 A.3d 473, 481 (Pa. Super.
2010).
Regarding section 2511(b), the trial court inquires whether the
termination of Parents’ parental rights would best serve the developmental,
physical and emotional needs and welfare of the child. See In re C.M.S.,
884 A.2d 1284, 1286-87 (Pa. Super. 2005); see also In re T.S.M., 71 A.3d
251, 267 (Pa. 2013). “Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs and welfare of the child.”
In re C.M.S., 884 A.2d at 1287 (citation omitted). The court must also
discern the nature and status of the parent-child bond, with utmost attention
to the effect on the child of permanently severing that bond. Id.Additionally, “the strength of emotional bond between a child and a potential
adoptive parent is an important consideration in a ‘best interests’ analysis.”
In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009). In conducting a bonding
analysis, the court is not required to use expert testimony, but may rely on
the testimony of social workers and caseworkers. In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). Finally, although the focus in terminating
parental rights under section 2511(a) is on the parent, it is on the child
under section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc); see also In re Z.P., 994 A.2d at 1125 (stating
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that, a child’s life “simply cannot be put on hold in the hope that [a parent]
will summon the ability to handle the responsibilities of parenting.”).
Parents contend that CYS failed to meet its burden of establishing that
they had a settled purpose of relinquishing their parental rights, and have
refused or failed to perform their parental duties. See Brief for Parents at 5-
10. Parents argue that Mother had been attending visitations with Child,
and that she had cooperated with the trial court’s requirements to attend a
mental health evaluation, domestic violence training, and parenting classes.
Id. at 7, 9. Parents further argue that Father participated in parenting
education, mental health evaluations, domestic violence training, and
marriage counseling. Id. at 7-8. Parents claim that Father could not
complete his sex offender evaluation requirements due to a lack of funding,
and that his criminal history and registration under Megan’s Law was the
only condition that he could not remedy. Id. at 8. Parents assert that
Father was not permitted to have visitation with Child because of a
requirement imposed during the prior termination proceedings concerning
the two older children. Id. at 9. Parents allege that they wanted to
cooperate with CYS so that the court would not terminate their parental
rights to Child. Id. at 9-10.
Here, the trial court’s determination that Parents have evidenced a
repeated and continued incapacity, abuse, neglect or refusal that has caused
Child to be without essential parental care, control or subsistence necessary
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for his physical or mental well-being, and that the conditions and causes of
the incapacity, abuse, neglect or refusal cannot or will not be remedied by
Parents is supported by competent, clear and convincing evidence in the
record. The trial court noted that Parents’ issues with regard to the
termination of M.Y. and T.J. were ongoing, and Parents do not have the
ability to remedy the conditions. Trial Court Opinion, 11/17/15, at 2.
Further, the trial court found that “Mother’s moderate compliance with court-
ordered services did not establish her ability to protect [C]hild from harm[,]”
and “Father’s minimal compliance with sex offender evaluation and
treatment continues to present a grave risk to [C]hild.” Id. We, therefore,
find no abuse of the trial court’s discretion in terminating the parental rights
of Parents under section 2511(a)(2) and (b).
Additionally, the trial court’s determination that Parents cannot provide
for Child’s needs and welfare, and that his best interests are served by the
termination of their parental rights, is also supported by competent, clear
and convincing evidence in the record. Indeed, the trial court’s
determination that there is no bond between Child and Parents, and that
Child would not suffer any harm from the termination of their parental rights
is supported by competent, clear and convincing evidence. See K.Z.S., 946
A.2d 753, 762-63 (Pa. Super. 2008) (stating that “where there is no
evidence of any bond between parent and child, it is reasonable to infer no
bond exists”). Moreover, CYS presented evidence that Child has bonded
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with his foster parents and that they best serve his welfare interests. See
In re P.Z., 113 A.3d 840, 852 (Pa. Super. 2015) (stating that termination of
parental rights best served the child’s needs and welfare where a supportive
and secure environment existed with a new family); see also In re J.L.C.,
837 A.2d 1247, 1250 (Pa. Super. 2003) (stating that termination of parental
rights is proper where the child has formed a bond with the foster parents,
and where the child has lived with the foster parents for more than half of
his life). We, therefore, find no abuse of the trial court’s discretion in
terminating the parental rights of Parents under section 2511(b).
In their second argument, Parents assert that CYS deprived Father of
his constitutional guarantee to due process of law because CYS failed to
provide reasonable services to reunify Parents with Child. Brief for Parents
at 10. Parents argue that Father was required to complete certain sex
offender services as a prerequisite to reunification or even visitation with
Child, but neither CYS nor the court permitted funding for such services. Id.
at 11. Parents claim that their parental rights could not be terminated
because the Agency obviously had no intention of reunifying Father with
Child, and prematurely filed the Petitions to terminate parental rights. Id.
In support of their argument, Parents cite In re D.C.D., 91 A.3d 173 (Pa.
Super. 2014), which held that an agency must first make reasonable efforts
to reunify a parent with his or her child before filing a petition to terminate
parental rights. Brief for Parents at 10.
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Parents’ reliance on this Court’s decision in D.C.D. is misplaced, as our
Supreme Court reversed that decision. In re D.C.D., 105 A.3d 662 (Pa.
2014). Our Supreme Court has held that neither section 2511(a)(2) nor
section 2511(b) requires a court to consider, at the termination stage,
whether an agency provided a parent with reasonable efforts aimed at
reunifying the parent with his or her child prior to the agency petitioning for
termination of parental rights. Id. at 672. Considering the substantive due
process interests of parents, the Court concluded that the Adoption Act, and
the clear and convincing standard, is sufficiently tailored to protect a
parent’s fundamental rights while also ensuring the safety and permanency
needs of dependent children. Id. at 673-77. Thus, Parents’ second claim is
without legal support and lacks merit.
Accordingly, we affirm the trial court Decrees terminating the parental
rights of Mother and Father.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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